Is a Facebook ‘Like’ Protected Under the First Amendment?

Facebook(NEW YORK) — Back in April, a U.S. District Judge ruled that hitting the Facebook “Like” button wasn’t protected under the First Amendment. You know, the one that ensures our freedom of speech.

The case involved six employees who worked for Sheriff B.J. Roberts in Hampton, Virginia. In 2009, Roberts was running for reelection and one of the six — Daniel Ray Carter — “liked” Robert’s opponent on Facebook. After the election, the Sheriff fired Carter and the others. The employees brought the case to court, but the judge threw out the case, ruling that clicking on “like” wasn’t protected by the First Amendment.

However, Facebook and the American Civil Liberties Union are on the case now. Both have filed their own friend-of-the-court, or Amicus Curiae, briefs in appeal of the judge’s ruling.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” ACLU attorney Aden Fine said in a comment.

“Whether someone presses a ‘Like’ button to express those thoughts or presses the buttons on a keyboard to write out those words, the end result is the same: one is telling the world about one’s personal beliefs, interests and opinions. That is exactly what the First Amendment protects, however that information is conveyed,” says the ACLU brief. The entire ACLU brief can be read here.

Facebook makes a similar argument in its brief. “Liking a Facebook page is entitled to full First Amendment protection,” says the Facebook brief. “The district court reached a contrary conclusion based on an apparent misunderstanding of the way Facebook works; the resulting decision clashes with decades of precedent and bedrock First Amendment principles.”

Facebook argues, “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”

There were other issues, unrelated to freedom of speech, that the judge cited in dismissing the case in April, according to the Hampton local paper, the Daily Press. So even if a Facebook “like” ultimately deserves First Amendment protection, it isn’t clear if the issue would be enough to send the case back to court.